Crump v. Versa Products, Inc., 03-2954.

• Decision Date: 18 March 2005
• Docket Number: No. 03-2954.,No. 03-3098.,03-2954.,03-3098.
• Citation: 400 F.3d 1104
• Parties: Kimberly R. CRUMP, Susan W. McKinley, Taryen R. Crump, Michelle L. Govro, and Melissa Crump Morris, Appellants/Cross-Appellees, v. VERSA PRODUCTS, INC. and Sam's East, Inc., doing business as Sam's Club, Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

400 F.3d 1104

Kimberly R. CRUMP, Susan W. McKinley, Taryen R. Crump, Michelle L. Govro, and Melissa Crump Morris, Appellants/Cross-Appellees, v. VERSA PRODUCTS, INC. and Sam's East, Inc., doing business as Sam's Club, Appellees/Cross-Appellants.

No. 03-2954.

No. 03-3098.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2004.

Filed: March 18, 2005.

COPYRIGHT MATERIAL OMITTED

Francis J. Flynn, argued, St. Louis, MO, for appellant.

Louis J. Basso, argued, Chesterfield, MO, for appellee.

Before MELLOY, BRIGHT, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

On July 29, 1997, Forrest E. Crump died after falling from a ladder manufactured by Versa Products, Inc. and sold by Sam's East, Inc. Crump's family (the "Crumps") sued Versa and Sam's in state court, who removed the case to the district court¹ due to diversity. After a two-week jury trial, the Crumps submitted on strict liability design defect, and negligent failure to warn. The jury found for the defendants.

Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.

I.

The Crumps' first two points address jury instruction No. 16, asserting that defense counsel changed the wording of the instruction so it misstated Missouri law, without notifying the court or Crumps' counsel. Accordingly, the Crumps request a new trial for either the erroneous instruction or the alleged misconduct. The third point challenges the trial court's exclusion of other "substantially similar" accidents. Finally, the Crumps claim the district court improperly admitted testimony of two defense experts.

The "Versaladder" uses a patented hinge — the "Automatically Interlockable Hinge Fitting." The Versaladder includes several such hinges, allowing for various configurations. The Crumps allege the hinges unlock unexpectedly, and a user cannot visually check if the hinges are locked.

Neither party objects on appeal to the application of Missouri law to the products liability issues in this case. In Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362, 364 (Mo.1969), Missouri "adopted the rule of strict liability in defective product claims as defined in Restatement (Second) of Torts § 402A." Gramex Corp. v. Green Supply, Inc., 89 S.W.3d 432, 438-39 (Mo. banc 2002), citing Lippard v. Houdaille Indus., Inc., 715 S.W.2d 491, 492 (Mo. banc 1986), and Blevins v. Cushman, 551 S.W.2d 602, 606 (Mo. banc 1977). This rule

causes a person who sells a product "in a defective condition [un]reasonably dangerous to the user or consumer" to be liable to the ultimate user or consumer for any harm caused by use of the product if "(a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold."

Gramex, 89 S.W.3d at 439, quoting Keener, 445 S.W.2d at 364.

The district court gave instruction 16:

The defendants in this case are not guarantors against or liable for any and all accidents and injuries that arise or occur by reason of the use of the ladder. Nor is there a duty upon the Defendants to sell a ladder which is "accident proof" or "fool proof." What the defendants are required to do is sell a product free from defective and unreasonably dangerous condition.

In submitting instruction 16, Versa and Sam's cited "82.08 Devitt, Blackmar & Wolff" and cases, including Laubach v. Otis Elevator Co., 37 F.3d 427, 429 (8th Cir.1994).

The Crumps claim instruction 16 misstates Missouri law. The parties dispute whether the Crumps preserved this error for appeal, and whether Versa and Sam's attorneys committed misconduct. In view of the disposition below, this court assumes preservation and addresses the merits of the instruction. See Commercial Prop. Inv., Inc. v. Quality Inns Int'l, Inc., 61 F.3d 639, 643 (8th Cir.1995). Reviewing for abuse of discretion, this court determines "whether the instructions fairly and adequately submitted the issues to the jury." Bennett v. Hidden Valley Golf and Ski, Inc., 318 F.3d 868, 873 (8th Cir.2003) (citation omitted). "In this diversity case, Missouri law applies to the substance of the instructions, while federal law `governs our review of the discretion exercised in refusing or admitting such instructions.'" Id. (citation omitted).

The Crumps argue that the first and second sentences of instruction 16 conflict with Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986). Strict products liability extends to "reasonablely anticipated use ... includ[ing] misuse and abnormal use, which is objectively foreseeable." Id. at 381. A product "is actionable if dangerous to an extent beyond that which would be contemplated by the ordinary consumer, who either purchases it or uses it, with the ordinary knowledge common to the community as to its characteristics." Id. at 376. "[T]he jury gives this concept content by applying their collective intelligence and experience to the broad evidentiary spectrum of facts and circumstances presented by the parties." Id. at 378. Still, "strict tort liability is not, nor was it ever intended to be, an enveloping net of absolute liability." See id. at 375.

The Crumps assert that instruction 16 omits the concepts that "reasonably anticipated use" can include "misuse," and that sellers must protect against accidental and foolish uses that are objectively foreseeable. See Nesselrode, 707 S.W.2d at 381. This court agrees that the first and second sentences of instruction 16, in isolation, do not capture that Missouri leaves the definition of "unreasonably dangerous" to the jury, and allows recovery for misuse that is foreseeable or reasonably anticipated.

Nevertheless, jury instructions must be read together and viewed in their entirety. Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 904 (8th Cir.1985); Laubach, 37 F.3d at 429. "The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues." Westborough Mall, Inc., v. City of Cape Girardeau, Mo., 794 F.2d 330, 335 (8th Cir.1986).

The Crumps acknowledge that the third sentence of instruction 16, "What defendants are required to do is sell a product free from defective and unreasonably dangerous conditions," correctly states Missouri law. The Crumps also concede that instructions 17 and 18 state the standard for imposing strict liability under Missouri law, following Missouri Approved Instructions 25.04 and 19.01. Instruction 17 reads:

Your verdict must be for the plaintiffs on their claim for products liability against defendant Versa products [sic], Inc. if you believe:

First, defendant Versa Products, Inc. sold the Versaladder in the course of defendant's business, and

Second, the Versaladder was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and

Third, the Versaladder was used in a manner reasonably anticipated, and

Fourth, such defective condition that existed when the Versaladder was sold directly caused or directly contributed to cause damage to plaintiffs.²

Under instructions 17 and 18, the jury determines whether the product was unreasonably dangerous when used in a manner reasonably anticipated. Instruction 16 — read together with 17 and 18 — permits the jury to find for the Crumps even if it believes the Versaladder was used accidently or foolishly. In context, instruction 16 reflects Missouri's doctrine that strict liability is not absolute liability. See Nesselrode, 707 S.W.2d at 375.

In Laubach — a res ipsa loquitor case — this court held that an instruction similar to instruction 16, "[w]hen placed in context ... can fairly be read as cautioning the jury that it was allowed to return a verdict in favor of Laubach only if he proved that Otis was negligent, and not merely because an accident occurred."³ Laubach, 37 F.3d at 430 (emphasis added). In both Laubach and this case, the challenged instruction, in context, requires more than an injured party in order to impose liability. The instructions in Laubach required that the jury find negligence, while here, the instructions require the jury find the ladder "unreasonably dangerous."⁴

The Crumps also object that instruction 16 misstates the law as to their failure-to-warn claim submitted in instruction 19, because instruction 16 misleads the jury as to the scope of the risks about which defendants must warn. To the contrary, instruction 19 — the verdict director for failure-to-warn, based on Missouri Approved Instructions 25.09 and 19.01 — specifies the precise risks about which Versa allegedly must warn. The terms "defective" and "unreasonably dangerous" do not appear in instruction 19.

Accordingly, this court finds the instructions, in total, fairly and adequately submitted the issues of strict product liability and failure-to-warn. See Bennett, 318 F.3d at 873. In context, there is no error.

The Crumps next challenge the district court's excluding 44 other incidents of alleged hinge failure of the Versaladder. Admissibility of evidence is reviewed for abuse of discretion. Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 508 (8th Cir.1993).

Although evidence of substantially similar incidents may be admitted in a products liability case, "evidence of other injuries may also raise extraneous controversial points, lead to a confusion of issues, and present undue prejudice disproportionate to its usefulness." Id. (citation omitted).

Mr. Crump's incident occurred on July 28, 1997, with the ladder in a straight configuration. The district court allowed evidence of incidents before July 28, 1997, with the ladder in a straight position. The district court excluded 44 other incidents, which occurred either after that date or with the ladder in other than a straight position. Although these 44 incidents also involved alleged hinge failure, the...